European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019
Debate between William Cash and Lord Vaizey of Didcot(4 years, 11 months ago)
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Sir William Cash
I have indeed seen it, and I recall that a number of extremely abusive and obscene remarks were made with reference to the United Kingdom during that documentary. I also remember some of the chocolate soldiers, if I can put it like that, in the European Commission, who were delighted when they thought that the withdrawal agreement might go through, saying, “At last, we’ve created the circumstances in which the United Kingdom will become a colony.” That, of course, is completely true. I do not want to be diverted into all those arguments, but this is about who governs the United Kingdom, and these 27 other member states are not doing anything to help us or the Government, and certainly not the Prime Minister or our national interest.
I would add that the Cooper-Letwin Bill, which was authorised to proceed under a business motion agreed to by a majority of merely one, overturns the parliamentary governmental system to which I referred earlier, which is protected by Standing Order 14. That was done by an unwarranted constitutional revolution. As I said to the Leader of the House on the morning after the Prime Minister’s abject surrender to the other 27 member states and the EU Commission, the whole thing stinks. Incidentally, in fairness to the Leader of the House, she, together with eight other members of the Cabinet and, I understand, seven out of 10 in the Whip’s office, originally opposed the extension of time, in the national interest.
That day, I asked the Attorney General whether, under the ministerial code, his advice had been sought on that issue, but received the stock-in-trade answer that neither his advice as a matter of fact nor its contents are disclosed. That afternoon, I challenged the Prime Minister on the Floor of the House. I pointed out that she had broken her promises—made more than 100 times—not to extend exit day and that she was undermining our democracy, Northern Ireland, our right to govern ourselves, our control over our own laws and our national interest. I then called on her to resign. All this encapsulates the importance of annulling the regulations, for reasons that I will now give, and which I have set out in my submissions to the Joint Committee on Statutory Instruments, which, in fairness, had not had the opportunity to see them on 11 April.
On 11 April, the Government introduced the statutory instrument with a full explanatory memorandum—which I am sure the Minister read very carefully—setting out their legal assertions as to why the instrument purported to be lawful. As Chair of the European Scrutiny Committee—I speak in a personal capacity and on behalf the 82 Members of Parliament who signed my motion to annul the instrument—I presented my submission on 24 April, after the recess, to the Joint Committee on Statutory Instruments, in which I objected to the basis on which the Government sought to justify the legality of the statutory instrument in the explanatory memorandum.
Paragraph 1.2 of the explanatory memorandum states:
“This memorandum contains information for the Joint Committee on Statutory Instruments.”
On 1 May 2019, with the statutory instrument and the Government’s explanatory memorandum before it, the Joint Committee declined to draw special attention to the statutory instrument, which sought to delay exit day until 31 October, stating simply that:
“At its meeting on 24 April 2019 the Committee considered the Instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.”
There were 20 such unreported instruments, including the one before this Committee. The role of the Joint Committee, whose membership includes Members both of the House of Lords and the House of Commons, is to assess the technical qualities of each instrument in its remit and to decide whether to draw to the special attention of each House any instrument on one or a number of important grounds. Those include that the instrument imposes a charge on public revenue—I already have referred to the fact that it is costing the British taxpayer £7 billion to move the date from 29 March to 31 October.
Other grounds include doubt about whether there is the power to make the instrument at all, that it appears to represent an unusual or unexpected use of the power to make it, that its form or meaning needs to be explained and that its drafting appears to be defective. In my view, it would have been appropriate for the Joint Committee to draw to the special attention of each House this profoundly important historic document, but it chose not to do so. The Joint Committee decided that it would not make a special report on this vital question, nor did it publicly respond to my submissions, which were based upon a detailed legal analysis of the highest order. According to the 59th report of the 2017-19 Session, the Committee drew special attention to only one of the instruments reported. My arguments in disagreeing with the Government’s explanatory memorandum are based on a number of important issues, as a matter of both law and procedure.
Paragraph 2.3 of the explanatory memorandum states:
“This European Council decision and the United Kingdom’s agreement to it constitute a binding agreement to extend in EU and international law.”
That statement is open to an interpretation that places responsibility for the extension of the UK’s membership on the European Council, but the Council cannot extend the UK’s membership. Without an agreement, which is reached under international law between the UK and the Council, there is no extension. Paragraph 2.3 confuses the matter all the more when read in conjunction with a letter from Sir Timothy Barrow following the Council meeting of 10 April, in which he refers to a
“Council decision taken in agreement with the United Kingdom”.
As the Committee will know, the United Kingdom is expressly excluded from Council decisions and decisions in relation to extensions. Therefore, no Council decision was or could be taken with the United Kingdom’s participation. Only with a separate act of the United Kingdom outside the Council could an international agreement of the kind necessary to extend the UK’s membership of the EU have come about at all. To the extent that the United Kingdom’s representative in Brussels purported to agree to an extension, that act was performed under circumstances that did not allow the United Kingdom to give due consideration to the terms that the Council had proposed—demanded, I would say—or the terms of the United Kingdom’s response.
The hastiness of the letter was followed by the Government’s failure to observe the procedures required for the United Kingdom to enter into such international agreements. The memorandum asserts that, as a result of events following the European Council decision,
“the UK remains a Member State until 31 October 2019 regardless of the passage of these Regulations at the domestic level.”
As a matter of law, I believe this statement is untenable. The explanatory memorandum further states that the Government “will also now”—at that time—
“delay commencement of the repeal of the European Communities Act 1972”
under the arrangements for commencement orders. That ignores that fact that, under the Government’s own guidelines on commencement orders, they are required to be made within a reasonable time, otherwise questions of ultra vires are raised. The commencement order has been sitting there since 26 June 2018—far too long.
Moreover, there is no provision in the statutory instrument for exit day to take place on any of the possible alternative dates provided for in article 2 of the decision of the European Council of 11 April 2019, which stipulates a number of conditions for that further extension. The decision prescribed an extension lasting no longer than 31 October 2019, but with the proviso in recital 8 that, if the withdrawal agreement was ratified meanwhile, the United Kingdom would leave the European Union on the first day of the month following the completion of the ratification procedures.
Article 2 of the decision further requires that, if the United Kingdom did not ratify the withdrawal agreement by 22 May 2019 and had not held European parliamentary elections in accordance with European law, the decision would cease to apply and the extension would therefore expire on 31 May 2019. The effect of the decision was therefore to provide for three possible dates on which the United Kingdom might cease to be a member state of the European Union. On 11 April 2019, the Government wrote to the European Council accepting the demands of the decision. The statutory instrument now provides that exit day is 31 October 2019. However, there is no provision in the statutory instrument for exit day to take place on any of the possible alternative dates set out in the decision—I repeat: on any of the possible alternative dates set out in the decision. Therefore, the statutory instrument does not
“ensure the day and time specified in the definition are the day and time that the EU Treaties are to cease to apply to the United Kingdom.”
Thus, the statutory instrument was not made for the statutory purpose for which it was designed, and it is ultra vires and void, with the effect that our exit was at 11 pm on 12 April 2019.
Under section 1 of the European Union (Withdrawal) Act 2018, the repeal of the European Communities Act 1972 is tied to exit day. Thus, European law would no longer have precedence over domestic law from exit day. Furthermore, under section 5(1) of the same Act, the principle of the supremacy of EU law would not apply to any enactment or rule of law passed or made on or after exit day. Similarly, other provisions of the withdrawal agreement, such as section 6(1), would apply, so that decisions made by the European Union after exit day would no longer be binding on the courts of the United Kingdom. Furthermore, it is to be observed in paragraph 6(3) of the explanatory memorandum that the European Union (Withdrawal) Act 2019, for which Royal Assent was given on 8 April 2019, amends paragraph 14 of schedule 7 to the 2018 Act to convert the regulations in question from the affirmative to the negative resolution procedure.
Mr Edward Vaizey (Wantage) (Con)
I wonder whether my hon. Friend could help me on two points. First, if he succeeds in defeating the regulation in the Committee today, as he might well through the force of his arguments, what will be the practical outcome of his victory? Secondly, on his arguing that the regulation is ultra vires, is this not a matter for the courts, including the Supreme Court, rather than Parliament?
Sir William Cash
It is indeed a matter for the courts as well, but it is also prudent and constitutional for Government to make laws in such a manner as to be within the law. We operate under a system of the rule of law, and it is therefore unacceptable for Governments to make legislation. That is why the Joint Committee on Statutory Instruments and other Committees that scrutinise legislation, including the European Scrutiny Committee, which I happen to have the honour of chairing, have a job to do in bringing Governments to account. This Committee and the prescribed annulment procedures that we are going through are part and parcel of that democratic, accountable procedure.
Although it is ultimately for the courts to make decisions on the basis that my right hon. Friend suggests—namely that decisions can be evaluated, as in the Gina Miller case—in this instance we are not at that point yet, and in the meantime we have a Government passing legislation that I and many other distinguished Queen’s counsel and former judges believe to be unlawful, void and ultra vires on the one hand. On the other hand, given the devious means by which the Cooper-Letwin Bill was brought through, it is not appropriate for any proper system of parliamentary government, because it is inconsistent with the normal behaviour of Parliament in relation to the passing of legislation.
Mr Vaizey
Exactly. You were indicating two things, Sir Lindsay: first, that I need to get back to the point; and secondly, that I am an incredibly poor reader of hand signals from the Chair. I can tell that a few other hon. Members, who may not be members of the Committee, are also keen to project hand signals in my direction as part of this courteous but robust debate—the kind of debate that has characterised our approach to our exit from the European Union.
Turning to the regulations in front of us, my fundamental problem with the argument of my hon. Friend the Member for Stone is as follows. First, fundamentally, he believes that the regulations are ultra vires—that Parliament does not really have the power to pass them. He did not suggest that. He is an honourable man, and he would never dream of suggesting it. There can be no suggestion that the Government are trying to pull a fast one—that they are consciously passing legislation that they know to be ultra vires. I think it is the case, as we saw with article 50, that the Government take advice from their lawyers and follow procedures that they think are within the law and the constitution.
Sir William Cash
It is terribly simple. I believe that the Government knew perfectly well that this procedure was inappropriate. Furthermore, they rammed it through the House of Commons that afternoon of 11 April after the abject surrender by the Prime Minister, and then purported to say that it was an agreement when quite obviously it was imposed on the Prime Minister by the European Union’s 27 member states.
Mr Vaizey
I am slightly taken aback by that statement. My hon. Friend is someone whom I have long admired and looked up to—he has been in the House for more than 30 years and is well known for his constitutional expertise—but he makes a pretty serious allegation that the Government are putting through legislation that they are constitutionally not entitled to put through. I hope that, at some point, the Minister will address that, or that my hon. Friend will have the chance to expand on his point, but it surprises me. I compare the Government’s approach to that on article 50, as I said—because a treaty was involved, they believed that they had the power to extend article 50 without recourse to Parliament, and it took a court case to illustrate that invoking article 50 fundamentally changed legislation and so Parliament’s approval was required.
Given my hon. Friend’s intervention and that he has talked about Government through Parliament, not Parliament through Government, the other point that I find surprising is that he now appears to be saying that the Government are acting in bad faith. With his overview of the evolution of our unwritten and flexible constitution, is he coming to the conclusion, perhaps, that it is better to have parliamentary government, rather than Government through Parliament? On that basis, from his own arguments, surely he has now changed his mind on the Cooper-Letwin Bill, which came about partly because of the legislature’s mistrust of the motives of the Executive. The legislature was concerned that the Executive was not putting in place the procedures needed to stop no deal, which all of us in the room can at least agree would be absolutely catastrophic for the United Kingdom—[Interruption.] I am amazed that my banal remark has provoked an intervention, but I will give way.
Euratom Membership
Debate between William Cash and Lord Vaizey of Didcot(6 years, 10 months ago)
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Mr Vaizey
My hon. Friend is absolutely correct. One Member asked earlier why we are singling out Euratom from other European institutions that we will leave as part of the process of leaving the European Union. The key point is that our membership of Euratom is under a treaty separate from our membership of the European Union.
Sir William Cash
I just want to reaffirm something. The Commission’s position paper, dated 27 June, is quite unequivocal about the fact that when notice is given, we cease to be members of Euratom and also the EU under article 50. That is quite clearly set out in the Commission’s position paper.
Mr Vaizey
We remain members of Euratom, as we remain members of the European Union. We served our intention to leave, but there is many a slip between cup and lip. I hate to mention this name in august company, in case it sets off an argument, but it was interesting to see Juncker’s chief of staff today pointing out that he has never made a comment about our membership of Euratom. In terms of his general approach to Brexit and our not having our cake and eating it, he specifically said on Twitter today that that does not include Euratom. There are huge opportunities here, and we all stand ready to help the Minister.
Exiting the European Union and Global Trade
Debate between William Cash and Lord Vaizey of Didcot(6 years, 10 months ago)
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Sir William Cash
I know where the hon. Gentleman is coming from, but I simply say that even the leader of his party has more or less had to abandon the pursuit of the independence of Scotland, which is what underpins that question. [Interruption.] That is the bottom line. Comparisons between our great country and Somalia and Sudan are simply absurd, because this is a great country that has been making its own laws for centuries.
We went into the European Community with hope, and I voted yes in the 1975 referendum because I wanted to see whether it could work. My 30 years in the European Scrutiny Committee have proven absolutely that it does not. It is undemocratic and operates behind closed doors, and I doubt whether even that applies in some of the countries to which the hon. Gentleman has referred.
I now want to conclude—
Sir William Cash
I always know that I am making an impact when the hon. Member for Wantage starts wanting to get to his feet.
Sir William Cash
He is my right hon. Friend—my very good friend. [Laughter.] I have great respect for him, although we do not always agree about everything. The same is true of my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who is, I suspect, on much the same track as him.
We enjoy a trade surplus of £34.4 billion with the rest of the world. As I said, yes, 44% of our trade is with the EU—